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April 2009 - Posts
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Recently, in the case of CoStar v. Field, a federal court in Maryland was confronted with the following set of allegations: Two real estate companies accessed an online real-estate database for almost four years without authorization -- by using another subscriber's password and account. The site's owners now want to sue the companies. The website's Terms of Use (ToU) include a clause that says that all lawsuits will be resolved in the State of Maryland. Does that clause bind unauthorized users? The court said yes and, as I will explain, it was right to do so....
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In this column, we consider the First Amendment questions raised by a bill being considered by the California Assembly, AB 412. The bill would, among other things, amend the state's Penal Code sections to impose criminal penalties on "any person who hangs a noose, knowing it to be a symbol representing a threat to life, on the property of another, without authorization, for the purpose of terrorizing the owner or occupant. . ." For purposes of discussion, we will call this part of the bill a "hate crimes" provision....
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Recently, the Wall Street Journal and its law blog reported on a Pennsylvania controversy over "sexting" the practice of sending nude or semi-nude photos of oneself or others via cellphone. After some "sexted" photos were confiscated from students at a high school, the local District Attorney threatened to file broad child-pornography charges if the teens were not willing to enroll in a five-week compulsory educational program covering topics such as "what it means to be a girl in today's society." (This topic is telling; sexting controversies often seem to be connected to adults' discomfort with girls' expression of their sexuality. It seems likely, too, that discomfort with gay teens' sexuality will eventually lead to a sexting controversy as well.)...
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Last week, the U.S. Supreme Court heard argument in Ricci v. DeStefano. The case involves a group of firefighters and the New Haven, Connecticut Fire Department ("the Department"). It arose when the Department administered an examination to determine whom to promote to captain and lieutenant, after contracting with an organization that developed the exam. When the scores came back, the City discovered that none of the top three performers (all of whom would automatically be promoted if the test results were certified) was African-American. In addition, it found that the pass rate for African-Americans was approximately half that for whites, a disparity greater than that associated with other tests. After a hearing, the City's Exam Review Board decided not to certify the results of the employment test. As a result, no one was promoted....
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Today, the Supreme Court hears oral argument in Northwest Austin Municipal Utility District Number One v. Holder ("NAMUDNO"), arguably the Court's most important and perhaps most difficult case of the term. NAMUDNO involves a powerful challenge to Section 5 of the Voting Rights Act ("the Act") and implicates fundamental constitutional principles, pitting the Fourteenth and Fifteenth Amendments' protections of civil rights against the value of state sovereignty. Paradoxically, the very success of the Act in combating racial discrimination in voting has enabled such a strong challenge to one of its basic provisions....
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Earlier this month, a California appellate court issued an interesting ruling in a case in which a plaintiff's online writing was republished -- without her permission, and with her surname added in a context where it predictably was seen by a different and very hostile audience....
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This will be my last column, at least for the foreseeable future, as a regular FindLaw columnist. It has been an extraordinary privilege to have been given the license, every other Thursday, to reflect publicly on the legal issues of the day, great and small. And I am indebted both to the publishers of Writ, past and present, for vesting this trust in me and to the readers supportive, critical, or simply observant who honored me by considering my thoughts....
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Last week, the Justice Department released four previously secret memoranda that the Office of Legal Counsel ("OLC") under President Bush had issued to the CIA. The memos provided an ostensible legal basis for abusive interrogation techniques that were used, during the Bush Administration, against detainees suspected of terrorism. In a statement accompanying the memos' release, Attorney General Holder also announced that the Obama Administration would not bring federal criminal charges against government officials who acted in reliance on the memos, and would defend them against any international charges and civil lawsuits. Interestingly, Holder's statement did not explain what, if anything, the Administration plans to do with respect to the people who designed the policy and wrote the memos....
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Sometimes a critic may raise important questions even when his or her reasoning is meaningfully wrong. That was the case this week when Professor Paul Carrington, a respected member of the Duke Law School faculty, launched a broadside against Supreme Court Justices who take their right to "life tenure" too literally and hang on to their jobs until near-death, despite significantly diminished capabilities. Carrington's basic thesis is that the Justices enjoy the luxury to overstay their welcome because the job of being a Justice has become relatively easy (after all, they now only decide about 75 cases each term), and because they have delegated to law clerks much of the case-selection process. According to Carrington, there ought to be a way to force a Justice into retirement by referring that Justice to a council on judicial ethics, or through impeachment if the council recommends retirement but the Justice still refuses to leave....
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This month marks the one-year anniversary of the valiant attempts by Texas Child Protective Services (CPS) to save the child sexual-abuse victims in the Fundamentalist Latter-Day Saints (FLDS) group situated at the Yearning for Zion (YFZ) Ranch outside Eldorado, Texas. In this column, I'll take stock of related events since then, and explain the lessons they teach....
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The Obama administration's release last week of four Bush-era memos on the abusive interrogations of detainees in U.S. custody has raised a host of questions. The memos, written by Justice Department attorneys, purport to authorize CIA interrogators to use a range of coercive techniques against detained terrorism suspects, even techniques that constitute torture under U.S. and international law. The first and perhaps most compelling question is whether U.S. officials should be prosecuted for carrying out acts of torture, authorizing the use of torture, or ordering that torture be used. The administration was quick to suggest that it would not initiate such prosecutions, a move criticized by human rights groups and others....
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There is a high-stakes game for the future of the federal judiciary currently underway, albeit, at this time, still quietly being played out behind-the-scenes. Over a month ago, the New York Times revealed the then-imminent selection by the Obama Administration of "a small stream of nominees to the federal appeals courts" throughout the nation. The story even floated a few names of potential nominees. But little has happened since then....
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Last week, Karen Shablin, a spokesperson for Feminists For Life ("FFL"), gave a lecture at Cornell, at an event sponsored by the Cornell Coalition for Life ("CCL"). Her speech was passionate and eloquent and highlighted some important shortcomings in the status quo with respect to reproductive choice. As important as what Shablin said in her speech, however, is what she refused to say that contraception has an important role to play in empowering women. This omission one that Shablin explicitly attributed to FFL suggests that the word "Feminists" in the organization's name may not be entirely accurate....
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Nearly a decade after making history as the first state to provide marriage-like rights to same-sex couples, Vermont has now made history again as the first to grant full marriage rights via legislative enactment, without so much as a nudge from the state's judicial branch. On April 7, the state legislature overrode a gubernatorial veto to enact into law An Act to Protect Religious Freedom and Recognize Equality in Civil Marriage, which will authorize same-sex couples to marry in Vermont beginning on September 1, 2009. Three other states currently permit (or, in the case of Iowa, will soon permit) same-sex couples to marry, but each has done so pursuant to a judicial interpretation of the state constitution rather than as a result of legislative action. In this column, I'll trace the history of marriage rights for same-sex couples in Vermont and elsewhere, focusing as well on the like....
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A growing scandal has erupted in Britain over the government's role in human rights abuses, centering on claims of British involvement in the torture of terrorist suspects detained abroad. The uproar was sparked by allegations by former Guantanamo detainee Binyam Mohamed that British agents were complicit in his abuse, but it has since broadened significantly in its scope....
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Last Monday, the U.S. Supreme Court decided a case, Corley v. United States, that involves the "exclusionary rule" -- the label lawyers give to the idea that evidence obtained improperly by the police should not be used during a criminal trial, even if it is highly relevant to the question of guilt. In Corley, the Court, by a 5-4 vote, held that when federal police don't bring an arrested suspect before a magistrate judge (a process known as "presentment") within six hours of the arrest, and don't have an excuse for that delay, confessions made by the defendant after that six-hour time limit has run should be excluded from being admitted as evidence during the suspect's trial. In other words, in Corley the Court preserved the exclusionary rule for confessions obtained after unreasonable delay in presentment, at least in cases where the confessions were made more than six hours after the arrest....
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Facebook recently got lambasted by its users after it changed its Terms of service without providing users with direct notice of the change. In the new Terms of Service, Facebook purported to grant itself a perpetual license to user content, even after a member had left the site and canceled his or her membership. This term and the fact that Facebook had attempted to make such a significant change quietly angered many Facebook users who learned about the change only after a consumer-protection blogger mentioned it on his blog....
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It easy to understand the surging tide of anger towards AIG's payment of $165 million in bonuses to its employees. As much as any one company can, AIG might be said to embody all that went wrong inside the nations financial behemoths the reckless piling of risk upon risk, in order to create ephemeral paper profits and outsized pay packages for corporate executives....
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When Lillian S. and Howard S. began the process of dissolving their marriage, they elected to pursue a "collaborative law" divorce, one which followed special procedures and rules designed to avoid unnecessary conflict and pain for both of them. This was an ironic choice for this particular couple because, during the process, it was revealed that the couple's youngest child was fathered by another man during the wife's extramarital affair a fact that stopped the amicable divorce in its tracks. The new information raised two critical legal questions: Should the wife's affair or alleged concealment of her son's parentage affect the distribution of the couple's marital property? And, should the husband be able to collect damages for fraud if his wife knowingly concealed the truth about her son's parentage?...
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Recently, President Obama nominated United States District Judge David Hamilton to an Indiana-based vacancy on the U.S. Court of Appeals for the Seventh Circuit. The selection of Judge Hamilton is a valuable sign that Obama will fulfill his campaign promise to reduce the divisive partisanship that has troubled federal judicial selection....
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The recent federal district court decision in Tummino v. Torti is a window into the corruption in the Bush Administration, as well as a window into our current culture. Judge Edward Korman held that the FDA had engaged in arbitrary and capricious decisionmaking when it refused to permit a form of emergency contraception, called "Plan B," to be made available over the counter (OTC) to women under 18. The sole question before the FDA involved whether Plan B, available by prescription, would also be made available over the counter. The evidence before Judge Korman has made quite clear that the White House itself interfered with the ordinary science-based processes of the FDA in order to restrict the availability of Plan B for irrational reasons....
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Last October, Connecticut became the third state to authorize same-sex marriage, through the ruling of its high court in Kerrigan v. Commissioner of Public Health. Massachusetts and California had preceded Connecticut with similar rulings that paved the way for same-sex couples to marry on exactly the same terms as opposite-sex couples.
But the three-state endorsement of same-sex marriage proved only temporary, as California re-banned same-sex marriage in November via Proposition 8, a voter referendum amending the California Constitution to prohibit same-sex marriage within the state. Though Prop 8 is currently under challenge, it is likely to be upheld by the California Supreme Court. If so, that ruling will mean same-sex marriage is dead in California for at least the near future, until a pro-same-sex-marriage proposition can again be put on the ballot. Iowa has now added to the number of states embracing marriage equality. This once again made the count three, a count that lasted only five days because the Vermont legislature even as this column was being written passed a marriage equality law, overriding the state governor's prior veto. (Joanna Grossman will consider the Vermont bill in more detail in a later column.) The state's highest court issued a unanimous ruling last week in which it struck down a 1998 state law banning same-sex marriage. The court, in Varnum v. Brien, concluded that the ban was a form of unconstitutional sexual-orientation discrimination....
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In late March of this year, Google Street View started offering its service -- which allows users of Google Maps to explore neighborhoods at street level "virtually and to take virtual walks through cities around the world" -- in the United Kingdom. Google captures these photographic images by sending vehicles with cameras mounted on their roofs to drive through nearly every street in a given city. In response, citizens and UK newspapers questioned Google's surveillance tool and worried about Google's influence on peoples privacy....
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Last week, in Entergy Corp. v. Riverkeeper Inc., the U.S. Supreme Court rejected a challenge to the Environmental Protection Agency's use of cost-benefit analysis in regulating water pollution by power plants. Writing for the Court, Justice Scalia said that the EPA acted reasonably in weighing the costs and benefits of various technologies when it promulgated regulations under Section 316(b) of the Clean Water Act. That law requires that power plants employ "the best technology available for minimizing [their] adverse environmental impact."...
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In a striking and decisive move, Attorney General Eric Holder has dismissed the indictment that had resulted in the conviction of former Republican U.S. Senator Ted Stevens of Alaska. As Holder explained, he made the surprising announcement of the dismissal after he discovered further evidence of prosecutorial misconduct, and determined that in the interests of justice, he must seek to have the indictment voided and the case dismissed....
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